“Gag order” on Military Commission defendants substantially lifted

Very important and welcome news from Guantánamo Bay:  The defendants in military commissions cases and their counsel are now free to discuss their interrogations and conditions of confinement, including while they were in CIA custody.

Last May, in a post about the various ways in which the government was considering changes to its policies regarding information about the treatment and interrogation of former CIA detainees, I wrote this:

[T]he defendants in both major commissions cases have challenged the legality of protective orders that prohibit the detainees themselves, and their counsel, from disclosing to the public (including at trial) many of the details about their detention and treatment, including, for example, the interrogation techniques that were applied to them, and descriptions of the conditions of their confinement by the CIA.  There is, to say the least, a very serious question about whether the government has the legal authority to silence such persons from disclosing their own accounts of what our government has done to them.  This issue has loomed large over the commissions process:  Many observers, both here in the U.S. and abroad, have come to believe, rightly or wrongly, that the government has elected to use a military justice system rather than Article III courts in order to suppress information about the CIA’s treatment of the “high-value” detainees. . . .

On February 10, White House Counsel Ruemmler wrote . . . to . . . [inquiring] Senators to inform them that “Director Brennan is taking [steps] to declassify certain information relating to the former [Rendition, Detention, and Interrogation] program in support of the current military commission proceedings.”

I further explained that, in addition to Ruemmler and Brennan, Chief Prosecutor Mark Martins also had been pushing for a change of policy that would permit the defendants to be more forthcoming in describing their treatment at the hands of the U.S.  “This is a very promising development,” I wrote:  “If, in fact, the government declassifies much or all of the information concerning how the government treated the commission defendants and their co-conspirators, that would presumably mean the end–or at least the substantial narrowing–of the controversial gag orders.  Whether that would be enough to substantially restore the legitimacy of the commissions in the eyes of many observers remains to be seen.  But certainly it would be a substantial, and very salutary, step forward.”

Well, the government has finally taken that important step.  The first sign of change came when the government recently permitted GTMO detainee Mohamedou Ould Slahi to publish his diary, which extensively describes his account of his treatment at GTMO and at other locations.  (Indeed, Slahi’s diary even describes how the CIA allegedly rendered him to Jordan, where he was interrogated for many months.)

Then, in several recent filings over the past ten days or so, in both the 9/11 and Nashiri commission proceedings, Gen. Martins has effected major changes to the existing protective orders.

By way of background, the most controversial and legally dubious parts of those protective orders prohibit the detainees and their attorneys from disclosing publicly the “observations and experiences of an accused with respect to” five categories of information:

(a) Information that would reveal or tend to reveal details surrounding the capture of an accused other than the location and date;

(b) Information that would reveal or tend to reveal the foreign countries in which [the accused] were detained [prior to their arrival at GTMO];

(c) The names, identities, and physical descriptions of any persons involved with the capture, transfer, detention, or interrogation of an accused or specific dates regarding the same . . . through 6 September 2006;

(d) The enhanced interrogation techniques that were applied to an accused . . . through 6 September 2006, including descriptions of the techniques as applied, the duration, frequency, sequencing, and limitations of those techniques; and

(e) Descriptions of the conditions of confinement of any of the accused . . . through 6 September 2006.

The new policy was announced in several recent filings of the prosecution.  Those filings are for some reason not yet publicly available on the Commissions website.*  But in his statement yesterday, General Martins described their upshot:

Most importantly, if the court grants the prosecution’s motion, it would strike subparagraphs (d) and (e) from the Protective Orders, so that the detainees and their counsel would now be free to speak about their conditions of confinement and the interrogation techniques to which they were subjected.

Moreover, as an earlier government filing indicates, even apart from those two categories of information, detainees are now also free to discuss information that would otherwise fall within one of the remaining categories of protected information if it is described within the “four corners” of the publicly released version of the SSCI Executive Summary of its Report on the CIA’s Rendition, Detention and Interrogation Program.

This is a very important development.  Indeed, it should have happened long ago.  The speech restrictions were, for starters, of questionable legality:  The government’s theory apparently is that when it classifies information, such classification affords it the authority to prohibit persons outside the Executive branch from publicly discussing their understandings of the classified facts–indeed, even when the facts in question concern how the government itself has treated those private parties.  That argument rests on very shaky legal ground, as I suggested in a post eight years ago.  (Think, for example, of persons who were interrogated but are no longer in U.S. custody:  The notion that they are legally obligated not to discuss their experiences–just as former Executive employees such as myself are bound not to disclose classified information we learned while working for the government–would be fairly absurd.)**

More importantly, whether it was legal or not, the policy was extremely shortsighted and counterproductive.  To begin with, it’s not apparent that the policy served any legitimate government interests.  At one time, perhaps the government might at least have argued that it had an interest in withholding disclosure about the particular methods it would use to interrogate those who are captured, so that the enemy could not “prepare” to withstand such methods.  I’m skeptical that would have been a valid argument, especially since it depended on the (mistaken) assumption that no such detainees would be released and convey such information to their colleagues.  But at least it was an argument with surface plausibility.  Once the Administration released the OLC memos describing the CIA techniques, however, and once the President decreed that the U.S. will henceforth only use those techniques that are described in the Army Field Manual, the predicates of even that dubious argument were no longer valid.

And not only did the nondisclosure policy fail to serve any obvious legitimate function; it also had a huge downside from the government’s perspective–namely, contributing to the widespread international impression that the very reason the U.S. was using commissions rather than Article III courts was to cover up embarrassing information about U.S. treatment of detainees.  As long as the Protective Orders remained in place unchanged, there was virtually no hope that the commissions would ever be seen as legitimate fora for war crimes trials.

Of course, this recent policy change is not a panacea; it won’t radically change the reputation of the commissions overnight.  Nevertheless, it is a critical and necessary, and long overdue, development.  Kudos to those who made it happen.  (I assume that similar changes will be effected to the speech restrictions imposed upon other Guantánamo detainees, too–those not being tried by Commissions.  Certainly there is no obvious reason why they should not be.)

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* Just as an aside:  The time-lag for publication of commission documents is itself becoming an embarrassment.  The most recent few dozen documents in the 9/11 case, for instance, remain unavailable.  Most of the documents filed in these cases contain little or no classified information, and could readily be posted after only a few minutes or hours of review.  There is no apparent reason why the public must wait weeks to find out what’s going on in the commissions, especially when it’s something as significant as the latest changes to the protective orders.

** Thus, a legal cloud still hovers over the restrictions that remain in effect, such as the prohibition on detainees’ speaking about the nations in which they were held.  (Recall that the issue is not whether the U.S. must acknowledge the involvement of other nations–something it may have a substantial interest in avoiding even after reports of such cooperation are public–but only whether detainees can allege that they were held in other nations.)  Those particular restrictions, however, are much less likely to be the subject of contestation in the commissions proceedings, since they will less frequently be of relevance to any issues being adjudicated in those trials.  In any event, the detainees eventually will speak out about those details, as well–particularly those individuals who are one day released.  Indeed, even Slahi, who remains in custody, has recently described how the CIA allegedly rendered him to Jordan. 

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About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. You can follow him on Twitter (@marty_lederman).